Constitution Check: Is there a constitutional right to “stand your ground”?

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In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: self-defense and the Constitution.

The statement at issue:

“The stand-your-ground law is one portion of justifiable use of deadly force. And what that means is that the state must go forward and be able to prove its case beyond a reasonable doubt…It makes the case in general more difficult than a normal criminal case.”

–Angela Corey, State Attorney in Jacksonville, Fla., who has been appointed to lead the investigation into the February 26 shooting death of 17-year-old Trayvon Martin in Sanford, Fla. Corey commented to ABC News on March 26 about the possible prosecution of the individual who has said he shot the youth in self-defense.

We checked the Constitution, and…

“Justifiable use of deadly force” is another way of talking about a right of self-defense. That right is a very curious thing in the law: it is nowhere mentioned in the Constitution, yet it has ancient roots in legal theory and history, everyone probably assumes they have such a right, and perhaps half the states make it a specific right under their own constitutions.

And all of that is why State Attorney Corey may have a tough time getting a guilty verdict if she were to file criminal charges against George Zimmerman, the “neighborhood watch” volunteer at the Retreat at Twin Lakes subdivision in Sanford, Fla., for allegedly killing Trayvon Martin.

At this point, if he is charged, his defense very likely will be based in part on a Florida statute now widely known as the “Stand Your Ground” law. But behind that law, initiated by the National Rifle Association and now imitated in more than 20 other states, is an argument that such a right to defend one’s self in the face of imminent danger ought to be treated as constitutional in nature.

That is based on a theory that has been talked about for years in academic circles and among gun-rights advocates, and, if one could discuss it without the emotion of the kind stirred up by Trayvon Martin’s tragic death, the theory is not entirely frivolous.

The Supreme Court has spoken of a right of self-defense within one’s home as if it were a clearly established right. Its decision in 2008 in District of Columbia v. Heller, recognizing a personal right to have a gun under the Second Amendment, said that such a weapon could be used “for traditionally lawful purposes, such as self-defense within the home.”

And, in what is widely regarded as a compelling scholarly argument for self-defense as a constitutional right, Fordham law professor Nicholas J. Johnson declared confidently in a 2009 law review article: “While the stickler might quibble about the fashion in which it has been recognized, the ancient right of self-defense is in the first echelon of fundamental constitutional rights essential to ‘liberty,’ first among the [unenumerated] rights protected by the Ninth Amendment, and at the core of a proper understanding of the Second Amendment.”

The NRA’s promotion of “stand your ground” laws has proceeded from the Second Amendment aspect of that very theory. (Professor Johnson wrote that the evidence that the Second Amendment contains a right of self-device “seems quite overwhelming.”)

What a stand your ground law does, as Florida’s statute shows, is to do away in some situations with a long-standing limitation on the right to defend one’s self: that is, it provides a way to overcome the so-called duty to retreat in the face of danger rather than engage in a violent response.

Florida’s law says that “a person who is not engaged in an unlawful activity and who is attacked in any other place he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or to another or to prevent the commission of a forcible felony.”

It is not an authorization to use deadly force first, or always, because it depends upon (a) the shooter having a right to be where the incident occurred, (b) the shooter must have been acting lawfully at the time, (c) must have been attacked, and (c) must have had a “reasonable” belief that deadly force was necessary. It is a defense to a charge of criminal use of deadly force, and it is up to a jury to decide if the conditions in the law have been met. (If George Zimmerman were charged, it probably would be under a Florida law making it a crime to engage in “unnecessary killing to prevent an unlawful act.” That is the law cited by local police when they typed up their report on the incident.)

As of now, “stand your ground” laws are a matter of state law only, but could in time provide the means to implement a right nationwide if self-defense were ultimately to emerge as a guaranteed right under the Constitution.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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